The role of the Council of Eminent Persons ― C. Vignesh Kumar

JUNE 23 ― In the aftermath of its general election victory over the previous ruling Barisan Nasional coalition, the Pakatan Harapan (PH) federal government on May 12, 2018 through Prime Minister (PM) Tun Dr Mahathir Mohamad announced the appointment of a five-member Council of Eminent Persons to advise what was in the words of the PM his “fledging government” on matters related to finance and economy.

With regards to the role of this Council of Eminent Persons, the PM said the eminent persons council will help draft policies for the PH government to ensure some of the coalition's electoral pledges are fulfilled within 100 days.

The PM went on to add that the PH government needed some expertise which must come from people with knowledge and with previous knowledge of administration, for being in the government, for having had held some responsible posts.

Apart from that, the PM stated that that the Council will go through the books of various government organisations and ministries to ascertain if any had been involved in the “previous government's misdeeds.

What can be gathered here is that the functions of this Council is advisory in nature where financial issues and matters of economy is concerned, assisting in drafting of policies and to examine records pertaining to governmental organisations.

Let us also point out that the Council is not a creation of statute nor is it a body of enquiry established under the Commissions of Enquiry Act 1950.  The Council is also not a body like the select committees which exists in Parliament.

At the same time, we can also safely conclude that the Council has no legal powers vested in it to act on behalf of the very government which appointed it.

Furthermore, the Council in itself is unprecedented in the annals of Malaysian legal history. No such body had formally existed before since Malaysia achieved nationhood in 1957.

Wanting to give the Council a benefit of the doubt which also extends to the newly elected PH federal government, we did not from its very formation venture to put scorn on the Council or be skeptical of its motives.

However, certain events have made us wonder as to whether the Council is turning into an all powerful body answerable to no one and without any limits imposed on its functions and powers.

Firstly, the Council has been making policy announcements such as concerning the price of goods, toll rates and even assuage investors and banks about economic issues. This is rather puzzling when its very purpose is to draft polcies and offer advice among others. Surely it was never intended for the Council to behave like a super executive in making such policy announcements while not being held accountable for its actions.

Secondly, the Council seems to be able to summon anyone to answer for issues deemed pertinent by the Council. This even seems to include summoning a sitting Chief Justice and President of the Court of Appeal who are both from the Judiciary which is a separate arm of the government.

Thirdly, pronouncements made by the Council seem like having the force of law.

We are genuinely concerned that the actions of the Council are flouting the Rule of Law, which appears as the underpinning consideration of the PH government. This is because the Council has no sound legal basis to exist in the first place.

Like we pointed out earlier, the Council is not created pursuant to any law. Its legal standing itself is on very shaky constitutional grounds since they have no place under our present constitutional system.

Under the Federal Constitution, the administration of the government lies with the executive that is headed by the PM who also heads the Cabinet. The Cabinet is the decision-making body where policies are formulated and later translated into legislation by the legislative body.

There is also no standard operating procedure or clear terms of reference provided for the Council which is rather glaring for the PH government which constantly never forgets to trumpet that it is a government based on transparency.

With no clearly provided mandate, the Council is basically a law unto itself with no checks on its rather vague and wide powers which it had taken into itself.

The action of the Council through one of its members in summoning members of other branches of the government is also disheartening as it violated the very doctrine of separation of powers, which is the bedrock of the Malaysian constitutional system. The Council in short has no legal basis to do what they have done in summoning people in the name of checking into governmental organisations.

The Council is also overstepping whatever boundaries (if it exists) which was imposed on it by the PH government when it decided through one of its members to summon the Chief Justice and the President of the Court of Appeal.

It is also disturbing to discover that the Council’s views and pronouncements seem to be thought of having the force of law. This was apparent when the CEO of MRT Corp decided to introduce cost cutting measures after meeting the Council. It looks like the Council appears to be not only advice on policy as per its mandate but to also influence decisions which surely falls outside its ambit of operation.

What would happen should someone challenge the decision of the Council or refuse to appear before for whatever reasons? Will the PH government then compel their appearance or will legal action will be commenced against such persons? We do live in interesting times indeed.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.